Opinion
Docket No. 32054.
1952-06-30
GEORGE UNGAR, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
Nathaniel Rothstein, Esq., for the petitioner. William G. O'Neill, Esq., for the respondent.
INCOME— DEDUCTION— THEFT— SECTION 23(e)(3).— A deduction for a loss from theft is not allowed for 1948 where the petitioner's wife removed property of his from his safe deposit box and disappeared at some time between July 1943 and April 1946 not disclosed by the record and their marriage was annulled in 1948. Nathaniel Rothstein, Esq., for the petitioner. William G. O'Neill, Esq., for the respondent.
The Commissioner determined a deficiency of $3,728.24 in income tax of the petitioner for 1948. The only issue for decision is whether the petitioner is entitled to a deduction of $9,000 for 1948 representing a loss by theft within the meaning of section 23(e)(3).
FINDINGS OF FACT.
The petitioner resides in Brooklyn, New York, and filed his return for 1948 with the collector of internal revenue for the first district of New York.
The petitioner and Evelyn Epstein were married in the latter part of December 1940. They were living together when the petitioner went into the military service in July 1943.
The petitioner at that time and for a number of years prior thereto had a safe deposit box in Kings County Savings Bank on Eastern Parkway in Brooklyn. The contents of the box at that time included some antique jewelry which he had inherited from his mother. The value of the jewelry at the time he inherited it was $8,000 and its value thereafter was never less than $8,000. The box also contained 10 United States Treasury coupon bonds, payable to bearer, each in the amount of $100, which the petitioner had purchased with his own funds.
He made an arrangement before he went into the Army for Evelyn to have access to the safe deposit box.
The jewelry and the bonds, above mentioned, were in the box when the petitioner was sent overseas in the military service. He returned to Brooklyn from overseas duty on April 1, 1946. He received a letter from his wife at that time, which she had left with his attorney, stating that she had gone off with another man, had taken all the funds out of the joint bank accounts, and had taken all of the property out of the safe deposit box and he would never see her or the property mentioned again. The property had been removed from the box.
The petitioner had never given the jewelry or the bonds to Evelyn and he had never authorized her to remove them from the box or otherwise deal with them.
The petitioner notified the police of the disappearance of his wife and the property but his efforts to locate her and the missing property were unavailing. He commenced an annulment proceeding against his wife which was terminated in 1948 by a final decree annulling their marriage.
The petitioner, on his return for 1948, claimed a deduction of $12,615.85 described as a loss from a theft by his ex-wife, Evelyn. The total amount included the jewelry, at a value of $8,000, and the bonds, at a value of $1,000, which are involved in this proceeding.
The Commissioner, in determining the deficiency, disallowed the deduction of $12,615.85 described as theft by ex-wife on the ground that it did not constitute an allowable deduction for 1948.
The facts stipulated by the parties are incorporated herein by this reference.
OPINION.
MURDOCK, Judge:
The petitioner claims that he is entitled to a deduction for 1948 representing a loss from theft. Personal and family expenses are not deductible and only such deductions may be taken as Congress has allowed. Section 23(e)(3) allows a deduction for losses sustained by an individual during the taxable year arising from theft. The parties and this Court agree that Evelyn could not steal the jewelry and the bonds from the petitioner while he was her husband. Grover Tyler, 13 T.C. 186. The petitioner contends, however, that a larceny of the property occurred in 1948 upon the theory that Evelyn continued to withhold the property wrongfully after their marriage had been annulled. Not only has he failed to cite any case supporting that contention but he has failed to show that Evelyn was alive or, if alive, was still holding the property at the time of the annulment. A missing person is not presumed dead for some purposes until the elapse of a certain time fixed by statute, but such a presumption is not urged in this case and it is not apparent that it would help the petitioner in any event. Certainly there is no presumption that a person has been guilty of larceny at any time. It was held in Burnet v. Houston, 283 U.S. 223, that impossibility of proof would not help the petitioner where he had the burden of proof, and so here any difficulty of proving that Evelyn was alive in 1948 and was still holding the property at that time would not save the petitioner. The record does not show that a loss arising from theft was sustained in 1948 within the meaning of section 23(e). The deduction is not claimed on any other basis.
Decision will be entered for the respondent.